The good news about the 'death' of NSA reform: surveillance supporters may have dug their own grave | Trevor Timm | Comment is free | The Guardian
9:44 am EST, Nov 19, 2014
The failure of the USA Freedom Act, no matter how incomplete the bill was, certainly isn’t something to celebrate. But now we will see multiple courts potentially ruling NSA surveillance unconstitutional. Now we will have a chance to force the government into potentially gutting key provisions of the Bush-era Patriot Act...
I think this is overly optimistic. I think support for renewing Section 215 of the Patriot Act will magically appear in the next 6 months.
The purpose of the USA Freedom Act is to manage public perceptions.
3:05 pm EST, Nov 17, 2014
The USA Freedom Act will likely be passed in the next few days or weeks. Its important to understand the over-arching purpose here - which is management of public perceptions.
The Whitehouse wants the public to think that the NSA never did anything wrong, and that Edward Snowden is a punk who violated his oath to protect national secrets. Perception IS reality, so maintaining that narrative is the most important priority.
The problem is that Edward Snowden's disclosures have created a situation where the Whitehouse is going to have to answer for the NSA's activities in a court of law, and they stand a considerable risk of losing those lawsuits, because there are a variety of pretty strong arguments that the NSA programs in question are not lawful.
So, the Whitehouse set out to preempt that process, by appointing a blue ribbon President's Review Group staffed with notable academics to take a look at the situation and make policy recommendations. I must admit that I was originally surprised when the President's Review Group recommended that the mass metadata collection program be shut down, but in retrospect it makes sense now.
The Whitehouse needs to moot the lawsuits, because they can't lose in court. If they lose in court, they'll lose control of the narrative. It will be clear that the NSA did something illegal.
The recommendations of the Presidents Review Group buttress the USA Freedom Act. When Congress passes it, the program will be shut down. If the program has been shut down, the lawsuits are moot. If the lawsuits are moot, the Whitehouse won't lose in court. If the Whitehouse doesn't lose in court, then it can continue to claim that the NSA never violated the law, and only people who are very savvy will know better.
The USA Freedom Act is being passed in a lame duck session, which seems to imply that politicians who plan to vote in favor of it didn't want to have to explain their votes on the campaign trail. Perhaps they didn't want to be accused of being soft on terror, but on the other hand, the only way to respond to that allegation is to say, to the voters, that you supported the bill because you thought that balance needed to be restored. If the NSA didn't do anything wrong, then why does balance have to be restored?
I don't think the powers that be wanted this conversation to be a part of the political dialog at all. Thats why it hasn't come up on the campaign trail - even with people like Mark Udall. Despite the deafening complaints out of the left about the Patriot Act leading up the 2008 election and the fact that their loss in this midterm election makes NSA reform slightly more difficult, they didn't make an issue out of it, and its not as if they were afraid to criticize the President, so they weren't holding back for the benefit of his image. The were holding back for the benefit of the NSA.
The USA Freedom Act will pass. The program will be shut down. The lawsuits will be moot and they'll get tossed out. The narrative will be that the NSA never violated the law. The narrative will be that Edward Snowden is a punk. The Whitehouse will control the narrative. Thats what they do.
Although I think that the Cato Institute does valuable policy analysis work, there is a reason that Libertarianism doesn't work as a political movement, and its not just because the cards are stacked against them. Its because they aren't what they claim to be.
Politically savvy people are usually familiar with the chart that I'm embedding in this post, which presents Libertarianism as being orthogonal to the normal left-right political divide. If this were true, the Libertarian movement would attract participation from anti-authoritarians on both the left and the right side of the political spectrum. Likewise, when Libertarians "cut a deal with the devil" and get behind mainstream political candidates, you'd expect there to be some semblance of balance between the candidates they chose to support - some being Republicans and some being Democrats.
However, this isn't what happens in practice. In practice, mainstream candidates that Libertarians get behind are consistently Republican candidates, and Libertarians are quick to rationalize that although these Republicans, like Rand Paul, may support some policy choices that Libertarians oppose, their success is important to the overall cause.
On the other hand, Libertarians don't seem to support Democrats under any circumstances, even ones who have proven track records of fighting for important individual liberties. In the most recent midterm election, Democratic Senator Mark Udall, an outspoken opponent of mass domestic surveillance by the NSA, lost his seat to a Republican challenger. What do Libertarian's think about this? Well, if the comments on Reason's blog offer any evidence, they are overjoyed! Here are a couple of examples of the responses that Reason received when they suggested that Udall's loss might be a bad thing, although you can follow the link for more.
While I have very low expectations for a GOP Congress, I have even lower ones if the Senate remains in the hands of the state-adoring Democrats. At least some Republicans want to stop the madness. And if they're willing to turn the heat up on this administration, then I'll be even happier.
So he raises some fuss in Committee - so what? He'll also vote for Harry Reid as Majority Leader, ensuring no meaningful legislation. He'll spend and tax and grab guns at every chance.
Are you f**king kidding me Reason????!!! Seriously WTF?!!
This is the guy that want's to scrap the f... [ Read More (0.4k in body) ]
Wiretapping before the Wires: The Post Office and the Birth of Communications Privacy by Anuj C. Desai :: SSRN
2:28 pm EDT, Oct 23, 2014
I explain the history of postal surveillance and show that the principle of communications privacy derives not from the Fourth Amendment or even from the Constitution at all. Rather, it comes from early postal policymakers who put that principle into postal ordinances and statutes in the late eighteenth century. Over time, the principle of communications privacy became embedded into the postal network by both law and custom. It was only then that the Court incorporated it into the Fourth Amendment in the 1878 case Ex parte Jackson, which in turn served as one of the bases of Justice Brandeis's Olmstead dissent. So, if today we see the principle of communications privacy as fundamental to the Fourth Amendment, we have postal policymakers to thank, for it was through the post office, not the Constitution or the Bill of Rights, that early Americans first established that principle.
I've finished preparing my presentation slides for PhreakNIC regarding the history and current interpretation of the Second Amendment. I think I've provided a faithful review of the history of the Amendment that explains the reasons for the controversy that surrounds it. In doing so, I found a minor error in the Opinion of the Supreme Court in D.C. vs. Heller - the recent landmark case recognizing an individual right to keep arms for self defense in the home. The Opinion makes reference on page 41 to two rulings of the Tennessee Supreme Court, Aymette v. State, decided in 1840, and Andrews v. State which the Opinion dates "21 years later." In fact, Andrews v. State was decided in 1871 - 31 years later.
I don't think that this error has any significance other than proof that I've been staring at this material too long. In 1861, Tennessee was in the process of withdrawing from the Union, which would have been very disruptive to the adjudication of Constitutional issues! In any event, I'm looking forward to speaking about this subject at PhreakNIC, and I hope that I can shed some light on it for everyone there.